An Essay On The Trial By Jury, Lysander Spooner [chrysanthemum read aloud .TXT] 📗
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Ch. 3. 45 Lardner's Cab. Cyc., 221.
Coke, Who Has Labored So Hard To Overthrow The Most Vital
Principles Of Magna Carta, And Who, Therefore, Ought To Be
Considered Good Authority When He Speaks In Its Favor, [3] Says:
"It Is Called Magna Carta, Not That It Is Great In Quantity, For
There Be Many Voluminous Charters Commonly Passed, Specially In
These Later Times, Longer Than This Is; Nor Comparatively In
Respect That It Is Greater Than Charta De Foresta, But In Respect
Of The Great Importance And Weightiness Of The Matter, As
Hereafter Shall Appear; And Likewise For The Same Cause Charta De
Foresta; And Both Of Them Are Called Magnae Char- Tae Libertatum
Angliae, (The Great Charters Of The Liberties Of England.)
"And It Is Also Called Charta Libertatum Regni, (Charter Of The
Liberties Of The Kingdom;) And Upon Great Reason It Is So Called
Of The Effect, Quia Liberos Facit, (Because It Makes Men Free.)
Sometime For The Same Cause (It Is Called) Communis Libertas,
(Common Liberty,) And Le Chartre Des Franchises, (The Charter Of
Franchises.)
"It Was For The Most Part Declaratory Of The Principal Grounds Of
The Fundamental Laws Of England, And For The Residue It Is
Additional To Supply Some Defects Of The Common Law.
"Also, By The Said Act Of 25 Edward I., (Called Confirmatio
Chartarum,) It Is Adjudged In Parliament That The Great Charter
And The Charter Of The Forest Shall Be Taken As The Common Law.
"They (Magna Carta And Carta De Foresta) Were, For The Most Part,
But Declarations Of The Ancient Common Laws Of England, To The
Observation And Keeping Whereof, The King Was Bound And Sworn.
"After The Making Of Magna Charta, And Charta De Foresta, Divers
Learned Men In The Laws, That I May Use The Words Of The Record,
Kept Schools Of The Law In The City Of London, And Taught Such As
Resorted To Them The Laws Of The Realm, Taking Their Foundation
Of Magna Charta And Charta De Foresta.
"And The Said Two Charters Have Been Confirmed, Established, And
Commanded To Be Put In Execution By Thirty-Two Several Acts Of
Parliament In All.
"This Appeareth Partly By That Which Hath Been Said, For That It
Hath So Often Been Confirmed By The Wise Providence Of So Many
Acts Of Parliament.
"And Albeit Judgments In The King's Courts Are Of High Regard In
Law, And Judicia (Judgments) Are Accounted As Jurisdicta, (The
Speech Of The Law Itself,) Yet It Is Provided By Act Of
Parliament, That If Any Judgment Be Given Contrary To Any Of The
Points Of The Great Charter And Charta De Foresta, By The
Justices, Or By Any Other Of The King's Ministers, &C;., It Shall
Chapter 11 (Authority Of Magna Carta) Pg 168Be Undone, And Holden For Naught.
"And That Both The Said Charters Shall Be Sent Under The Great
Seal To All Cathedral Churches Throughout The Realm, There To
Remain, And Shall Be Read To The People Twice Every Year.
"The Highest And Most Binding Laws Are The Statutes Which Are
Established By Parliament; And By Authority Of That Highest Court
It Is Enacted (Only To Show Their Tender Care Of Magna Carta And
Carta De Foresta) That If Any Statute Be Made Contrary To The
Great Charter, Or The Charter Of The Forest, That Shall Be Holden
For None; By Which Words All Former Statutes Made Against Either
Of Those Charters Are Now Repealed; And The Nobles And Great
Officers Were To Be Sworn To The Observation Of Magna Charta And
Charta De Foresta.
"Magna Fuit Quondam Magnae Reverentia Chartae." (Great Was
Formerly The Reverence For Magna Carta.) Coke's Proem To 2
Inst., P. 1 To 7.
Coke Also Says, "All Pretence Of Prerogative Against Magna Charta
Is Taken Away." 2 Inst., 36.
He Also Says, "That After This Parliament (52 Henry Iii., In
1267) Neither Magna Carta Nor Carta De Foresta Was Ever
Attempted To Be Impugned Or Questioned." 2 Inst., 102. [4]
To Give All The Evidence Of The Authority Of Magna Carta, It
Would Be Necessary To Give The Constitutional History Of England
Since The Year 1215. This History Would Show That Magna Carta,
Although Continually Violated And Evaded, Was Still Acknowledged
As Law By The Government, And Was Held Up By The People As The
Great Standard And Proof Of Their Rights And Liberties. It Would
Show Also That The Judicial Tribunals, Whenever It Suited Their
Purposes To Do So, Were In The Habit Of Referring To Magna Carta
As Authority, In The Same Manner, And With The Same Real Or
Pretended Veneration, With Which American Courts Now Refer To The
Constitution Of The United States, Or The Constitutions Of The
States. And, What Is Equally To The Point, It Would Show That
These Same Tribunals, The Mere Tools Of Kings And Parliaments,
Would Resort To The Same Artifices Of Assumption, Precedent,
Construction, And False Interpretation, To Evade The Requirements
Of Magna Carta, And To Emasculate It Of All Its Power For The
Preservation Of Liberty, That Are Resorted To By American Courts
To Accomplish The Same Work On Our American Constitutions.
I Take It For Granted, Therefore, That If The Authority Of Magna
Carta Had Rested Simply Upon Its Character As A Compact Between
The King And The People, It Would Have Been Forever Binding Upon
The King, (That Is, Upon The Government, For The King Was The
Government,) In His Legislative, Judicial, And Executive
Character; And That There Was No Constitutional Possibility Of
His Escaping From Its Restraints, Unless The People Themselves
Should Freely Discharge Him From Them.
Chapter 11 (Authority Of Magna Carta) Pg 169
But The Authority Of Magna Carta Does Not Rest, Either Wholly Or
Mainly, Upon Its Character As A Compact. For Centuries Before The
Charter Was Granted, Its Main Principles Constituted "The Law Of
The Land," The Fundamental And Constitutional Law Of The Realm,
Which The Kings Were Sworn To Maintain. And The Principal Benefit
Of The Charter Was, That It Contained A Written Description And
Acknowledgment, By The King Himself, Of What The Constitutional
Law Of The Kingdom Was, Which His Coronation Oath Bound Him To
Observe. Previous To Magna Carta, This Constitutional Law Rested
Mainly In Precedents, Customs, And The Memories Of The People.
And If The King Could But Make One Innovation Upon This Law,
Without Arousing Resistance, And Being Compelled To Retreat From
His Usurpation, He Would Cite That Innovation As A Precedent For
Another Act Of The Same Kind; Next, Assert A Custom; And,
Finally, Raise A Controversy As To What The Law Of The Land
Really Was. The Great Object Of The Barons And People, In
Demanding From The King A Written Description And
Acknowledgment
Of The Law Of The Land, Was To Put An End To All Disputes Of This
Kind, And To Put It Out Of The Power Of The King To Plead Any
Misunderstanding Of The Constitutional Law Of The Kingdom. And
The Charter, No Doubt, Accomplished Very Much In This Way. After
Magna Carta, It Required Much More Audacity, Cunning, Or
Strength, On The Part Of The King, Than It Had Before, To Invade
The People's Liberties With Impunity. Still, Magna Carta, Like
All Other Written Constitutions, Proved Inadequate To The Full
Accomplishment Of Its Purpose; For When Did A Parchment Ever
Have
Power Adequately To Restrain A Government, That Had Either
Cunning To Evade Its Requirements, Or Strength To Overcome Those
Who Attempted Its Defence? The Work Of Usurpation, Therefore,
Though Seriously Checked, Still Went On, To A Great Extent, After
Magna Carta. Innovations Upon The Law Of The Land Are Still Made
By The Government. One Innovation Was Cited As A Precedent;
Precedents Made Customs; And Customs Became Laws, So Far As
Practice Was Concerned; Until The Government, Composed Of The
King, The High Functionaries Of The Church, The Nobility, A House
Of Commons Representing The "Forty Shilling Freeholders," And A
Dependent And Servile Judiciary, All Acting In Conspiracy Against
The Mass Of The People, Became Practically Absolute, As It Is At
This Day.
As Proof That Magna Carta Embraced Little Else Than What Was
Previously Recognized As The Common Law, Or Law Of The Land, I
Repeat Some Authorities That Have Been Already Cited.
Crabbe Says, "It Is Admitted On All Hands That It (Magna Carta)
Contains Nothing But What Was Confirmatory Of The Common Law
And
The Ancient Usages Of The Realm; And Is, Properly Speaking, Only
An Enlargement Of The Charter Of Henry I. And His Successors."
Crabbe's Hist. Of The Eng. Law, P. 127.
Blackstone Says, "It Is Agreed By All Our Historians That The
Chapter 11 (Authority Of Magna Carta) Pg 170Great Charter Of King John Was, For The Most Part, Compiled From
The Ancient Customs Of The Realm, Or The Laws Of Edward The
Confessor; By Which They Mean The Old Common Law Which Was
Established Under Our Saxon Princes." Blackstone's Introd. To
The Charters. See Blackstone's Law Tracts, Oxford Ed., P. 289.
Coke Says, " The Common Law Is The Most General And Ancient Law
Of The Realm... The Common Law Appeareth In The Statute Of Magna
Carta, And Other Ancient Statutes, (Which For The Most Part Are
Affirmations Of The Common Law,) In The Original Writs, In
Judicial Records, And In Our Books Of Terms And Years." 1
Inst., 115 B.
Coke Also Says, "It (Magna Carta) Was For The Most Part
Declaratory Of The Principal Grounds Of The Fundamental Laws Of
England, And For The Residue It Was Additional To Supply Some
Defects Of The Common Law... They (Magna Carta And Carta De
Foresta) Were, For The Most Part, But Declarations Of The Ancient
Common Laws Of England, To The Observation And Keeping Whereof
The King Was Bound And Sworn." Preface To 2 Inst., P. 3 And 5.
Hume Says, "We May Now, From The Tenor Of This Charter, (Magna
Carta,) Conjecture What Those Laws Were Of King Edward, (The
Confessor,) Which The English Nation During So Many Generations
Still Desired, With Such An Obstinate Perseverance, To Have
Recalled And Established. They Were Chiefly These Latter Articles
Of Magna Carta; And The Barons Who, At The Beginning Of These
Commotions, Demanded The Revival Of The Saxon Laws,
Undoubtedly
Thought That They Had Sufficiently Satisfied The People, By
Procuring Them This Concession, Which Comprehended The Principal
Objects To Which They Had So Long Aspired." Hume, Ch. 11.
Edward
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